Carl Schmitt's ideas were already a controversial topic in the US long before his works were translated into English. At least, so it is claimed by the latest generation of American Schmitt scholars, who have uncritically bought into a questionable German tradition (2) that since the 1950s has sought to checkmate Schmitt out of any legitimate political discourse. (3) The result has been the perpetuation of ostensibly false interpretations of his ideas as being terminally fascist, thus unintendedly inflating their relevance and distorting the real reasons they have attracted, and continue to attract, any attention. These prejudicial readings have succeeded in reversing what began in the 1970s as an objective reception of Schmitt in the US, and in turning the clock back to the years following WWII, when even the rare "mention of Schmitt's name usually aroused such hostility that no objective discussion was possible." (4) This state of affairs results primarily from the difficulties managerial-liberal thought has had, and continues to have, with "coming to terms with a past" that is difficult to mainline into an otherwise discredited linear theory of history as inevitable progress and gradual emancipation.

This ideological approach is needed to legitimate predominant relations of domination (obtaining primarily among a ruling elite of experts, professionals, politicians, etc., and a well-administered citizenry) as being neutral and natural. Not only does this framework require automatic dismissal of all other modes of political organization, but also discrediting ideas perceived to be their ideological foundations. The result is a series of distortions and misinterpretations, which instead of defending and strengthening American institutions as claimed, weaken and undermine them by systematically occluding their real nature, and redefining them in extraneous "republican" terms--terms abstracted from European political realities brought about by the French Revolution. It is paradoxical that a European thinker such as Schmitt, whose entire career was focused primarily on strictly European problems, provides some of the most powerful conceptual tools to make sense of this peculiar predicament--including the idiosyncratic reaction to his ideas by managerial-liberal apologists, who see him as a major threat to the oxymoronic system they describe as liberal-democracy.

Trapped within the metaphysical parameters of a unidirectional theory of history that can interpret radical differences only as deviations or pathologies, managerial-liberal thought confronts the 20th and now the 21st century through obsolete, historically-specific categories hypostatized to the level of universality. The result is the homogenization of history and the elimination of particularity. When not dismissing it outright, such a de facto Manichean approach can deal with "the other" only as a variation on the same. Thus, whenever otherness appears, it must either be persuaded back into full sameness or else summarily liquidated as evil. Despite all the rhetoric about openness through "undistorted communication" and interminable dialogue, participation in discussions and deliberations is conditional on the prior acceptance of unchallengeable rules concerning a formal rationality and mode of discourse which automatically exclude all but those intellectuals and professionals fully initiated into the predominant jargon. (5) Consequently, confrontation with "the other" cannot result in any Hegelian transcendence, whereby development takes place by internalizing and thus coopting the opponent's moment of truth, but freezes radically opposing positions into a stalemate that only perpetuates conflict ad infinitum--pending resolution by other means. It is never a matter of reintegrating the radical opponent's counter-claims, but of either demanding capitulation or proceeding with outright rejection.

Within such a dogmatic scientistic context pretending to be ideologically neutral, history becomes straightjacketed as an ontogenetic reconstruction of the triumphal march of managerial-liberal thought. Particular categories developed within particular contexts to explain particular phenomena are automatically integrated within the predominant universalist framework to apply anywhere, anytime. The same happens with particular political ideologies. Thus, competing systems such as Nazism, fascism and communism--and now even Islamic integralism--are not only systematically misinterpreted, but, like liberalism, also universalized as permanent threats to a managerial liberalism hypostatized as the natural outcome of evolution and, therefore, as normal and natural. This is why such political thinkers as Schmitt, whose work was always inextricably rooted in problematic historical contexts, (6) can still be perceived as an ideological threat, long after those concrete historical situations have faded into the past. Because for a time he was opportunistically embroiled in Nazi politics, and the new American anti-Schmittians see Nazism and fascism not as closed chapters of 20th century history, but rather as permanent threats to liberalism, Schmitt's ideas are interpreted as something that must be eliminated, rather than as challenges to be confronted. In fact, the demonization of Schmitt is instrumentalized to defend the status quo and predominant relations of domination. Assumed to be the best of all possible systems, the existing managerial framework, run by a New Class elite, legitimates itself as the only bulwark of Western values by opposing all competing alternatives--equally rooted in the Western tradition--as lethal threats to its own interpretation of progress and emancipation. During the Cold War, the de facto permanent state of emergency contributed to the academic institutionalization of this state of affairs, which persists long after both Nazism and fascism (and, after 1989, even communism) have been vanquished. Worse yet, it perpetuates a Jacobin historiography predicated on the primacy of economic, rather than of political parameters, primarily as a straggle between capitalism and the poor, rather than as one between intellectuals and politicians versus ordinary people.

American Exceptionalism versus European Universalism

Yet, the political imperatives of the Cold War were not the only obstacles preventing serious debate concerning the nature of fascism, Nazism, and communism (7)--and thus also of liberalism and its theoretical foundations. The ascendant republican reinterpretations of American history have contributed to the occlusion of American particularism and its mainstreaming into managerial-liberal universal history. The subject of so much debate in Germany, this American version of Vergangenheitsbewaltigung had nothing to do with guilt or nationalism, but with the often unacknowledged and continuing struggle over American historiography and the question of American exceptionalism: whether the US is just another European-style nation-state confronting similar socio-economic problems and political choices, or a federation sui generis, whose understanding requires altogether different categories of analysis. From a foreign policy perspective, this question would be one of imperialism or isolationism. In terms of social and political theory, it concerns the viability of importing the allegedly universally-valid categories of European liberal theory to analyze particular American political realities. (8)

Forced by WWII into playing the major world power role it had rejected after refusing to join the League of Nations, and subsequently confronted with the communist threat, the US in the second half of the 20th century abruptly rejected isolationist sentiments that had resurfaced in the interwar period. Instead, it sought to mainline its own self-understanding within the kind of universalist political framework it had traditionally rejected since George Washington's Farewell Address--at least until Sept. 11, when the Islamic fundamentalist attack made the irreducibility of radical otherness unmistakably obvious. (9) Suddenly, the inherent universalist pretenses of liberalism again were demonstrated to be what they had always been, i. e., the expression of a particular version of secularized Christianity. This cataclysmic development encouraged a turn toward unilateralism in foreign affairs--something that had been developing slowly since the end of the Cold War.

Although defined by the Cold War, the postwar years were also characterized by an American administration attempting to fine-tune the New Deal--a collectivist project of socio-economic reconstruction that had been strengthened considerably by war mobilization, but remained unable to legitimate itself fully on the basis of those deep-rooted Protestant values of decentralized governance and local self-determination embedded in the US Constitution. Consequently, with the gradual shift from isolationism to imperialism and from classical to managerial liberalism, which had begun toward the end of the 19th century, but had stalled temporarily in the 1920s (in reaction to WWI), American historiography broke with its traditional exceptionalism. What took its place was a slight variation of the unilinear theory of history espoused by its managerial-liberal and, even more, its former communist opponents. The "pursuit of happiness," previously left to the discretion of particular communities, was redefined in terms of full and equal participation in a well-administered, professionalized society (a euphemism for socialism and social homogenization), projected as the inevitable outcome of all historical developments. As with all secularized versions of the Christian theory of history, deviations from such a path came to be seen as pathologies or breaks, rather than as legitimate alternatives.

On the ideological level, there was a general homogenization of American and European history, which made possible a transposition of European experiences to interpret American realities, and vice-versa. Thus, legitimate political projects concerned with defending traditions and organic social relations, such as those of most branches of American conservatism, were uncritically associated with brutally repressive modernizing ideologies, such as fascism and Nazism, which instrumentalized pseudo-traditions and mythical communities to gain power and legitimacy. Successfully ghettoized by the dominant universalist managerial framework, these legitimate political projects were systematically discredited as obstructions to progress and collective emancipation. (10) Although in economic matters they were mostly 19th century laissez-faire liberals, American conservatives who opposed the New Deal's centralization, homogenization, and planning (and, of course, the regulation and containment of capitalism) came to be practically criminalized. According to the standard Marxist reading of fascism and Nazism in Europe, they were seen as obstructions to progress and bent on violating legality whenever "democratic aspirations" demanded radical socio-economic changes threatening existing relations of privilege (the American version of the Dimitrov model).
(11) By the same token, those European conservative thinkers who opportunistically collaborated with fascist or Nazi regimes suffered an even worse fate. Instead of being condemned for attempting to integrate their rather different worldviews into what in 1933 was still a rather vague and heterogeneous Nazi ideology, they were demonized as evil figures whose ideas had actually paved the way for fascist and Nazi regimes by undermining liberal-democratic institutions--especially the legal system--even though their criticism of liberal institutions may have been made within a general liberal framework (as in Schmitt's case), and their understanding of Nazism may have differed fundamentally from what eventually became the official version.

The Politics of the Schmitt Reception

While there are very good reasons to criticize Schmitt and others like him for making terrible political choices in the 1930s, over half a century after the defeat of fascism and Nazism these judgments should not remain obstacles to objective evaluations of their ideas. This has not been the case within "politically correct," universalist, managerial-liberal perspectives. To the extent that, for managerial-liberal thought, fascism and Nazism remain permanent possibilities whenever capitalist development stalls, any conservative thought is a potential threat not only to "progress" and "emancipation," but also to liberal legal frameworks that allow this "progress" and "emancipation" to take place through democratic means. This universalization and inflation of the power of historically specific concepts helps explain both the extraordinary hostility toward Schmitt (and other influential conservative scholars), and why his ideas have generated so much academic interest for a thinker whose work, for the most part, remains inextricably rooted in the German political realities between the two world wars. In creating false fears concerning its contemporary political relevance, these critics have also prevented the articulation of the kind of legitimate criticism that Schmitt's work warrants, as well as an appreciation of his contributions to political philosophy and the history of legal thought.

Although practically nothing had been published in the US on or by Schmitt before 1970, when the first book on Schmitt in English appeared, (12) there now is speculation that not only has there been an uninterrupted "silent dialogue" between leading post-WWII American political thinkers (mostly German emigres forced out of Nazi Germany) and Schmitt, but that he has had considerable influence on such contemporary American conservative thinkers as Allan Bloom, William Kristol, Newt Gingrich, and Pat Buchanan--all implicitly criminalized as the intellectual storm-troopers of a potentially fascist involution in the US. (13) John McCormick even attempts "to build a bridge between past and present, between interwar German fascism and post-WWII North American conservatism," by showing the nefarious influence of Schmitt on Leo Strauss. Yet, American conservatives (14) have never shown any interest in Schmitt or his work. It was not until the early 1990s that the only book on Schmitt written by someone associated with the American Right appeared--a scholarly discussion of some of Schmitt's more controversial ideas, making no suggestions about their potential relevance to concrete conservative politics in the US. Rare attempts to even hint at the possible use of Schmitt's ideas in emergency situations in the US, e. g., to justify suspension of "the rule of law," (15) are ludicrous. Unlike often unstable European parliamentary systems, characterized by historically polarized (but increasingly converging) Left and Right parties, the US has clear-cut procedures in place concerning conflict-resolution during crises. Moreover, there has always been an exceptionally strong political consensus--even at the height of the Viet-Nam War--that readily allows deployment of emergency measures, enacted via standard legal procedures, as evidenced by the few times this has happened, such as the Tonkin Bay Resolution or the passage of questionable anti-terrorist legislation following Sept. 11.

Yet, hostility toward Schmitt's work is so intense that it spills over onto what anti-Schmittians smear as "Schmitt apologists"--those who view Schmitt as someone more interesting and relevant than a mere Nazi ideologue. This intensity cannot be explained solely in terms of differences of scholarly opinion. It is rooted in more subtle political issues. (16) While the motivation seems to be clear, i. e., that the "apology" somehow is related to a diabolical conservative attempt to re-habilitate fascist or Nazi ideology by de-Nazifying Schmitt and legitimating his dangerous ideas, the charge makes no sense and is a typical result of the confusion of European and American political realities. For example, the alleged "apologists" have no connection to conservatism: Joseph W. Bendersky (author of the first intellectual biography of Schmitt in English) has always been a liberal; George Schwab lost several close family members in Nazi camps and cannot possibly be suspected of fascist sympathies; and Telos (which published the first special issue on Schmitt in English) has been the main organ of New Left philosophy and theory in the US since 1968. Thus, the conflict of interpretations is not between Left and Right--or between conservatives and managerial liberals--but exclusively between what remains of the Left after the debacle of the New Left in the
1970s and the collapse of the Soviet empire in the late 1980s.

These conflicting interpretations can be traced to a fundamental split (17) that resurfaced after the collapse of New Left expectations, within what has always been a highly heterogeneous Left in the US--a split that dates to the beginning of the socialist movement in the 19th century. It is now reconfigured as a division between two groups. The first consists of those who have sought accommodation with the existing managerial liberalism, reinterpreted as a more palatable version of that same neo-Stalinist collectivist ideology that could not be marketed during the Cold War (and even less after the collapse of "really-existing socialism" in 1989). The second consists of those attempting to transcend the constraints of corrupt Left dogma and to redefine "emancipation" in terms of those Left traditions (such as the anarchists and the Frankfurt School, before its conformist "communicative" involution) historically repressed by a Marxism-Leninism whose positions and ideas had gained hegemony within the Left due to the Soviet Union's prestige as a world power.

Telos' initial interest in Schmitt's work was triggered in the 1980s by the realization, in the wake of the collapse of the New Left and under the influence of Norberto Bobbio's criticism, that the Left in general and Marxism in particular had no political theory. (18) Thus, it was essential to rethink the political framework of a Left that, having been lost for decades in the swamps of Stalinism and their periphery of fellow-travellers, was unable to redefine an autonomous emancipatory program independently of liberal models, totalitarian aberrations, or weaker technocratic variations. This is why the first special issue of a journal (19) devoted entirely to Schmitt's thought was subtitled "Enemy or Foe?" following a standard Schmittian distinction between an "enemy" (Feind) worthy of respect as an equal, and a "foe" (absolute Feind, since German does not have a separate word)--an unworthy opponent who must be exterminated. (20) This debate was metaphorically meant to distinguish between continuing the blank condemnation of Schmitt, typical of West German intellectuals unable or unwilling to confront the past independently of imposed Cold War limitations, and to engage in a critical confrontation with his ideas, which kept resurfacing, despite constant dismissals as part of an undifferentiated and vague Nazi ideology. While reminiscent of the more popular Schmittian definition of politics in terms of "friend or enemy," which would have implied acceptance or rejection of Schmitt ideas, the contraposition of "blank condemnation" and "critical discussion" was proposed to open an inquiry free of earlier prejudices and distortions.

The proposal fell on deaf ears. The new American anti-Schmittians not only missed the point, but have succeeded in recasting discussions of Schmitt in sterile and irrelevant post-WWII West German molds reducing Schmitt exclusively to the level of a Nazi theorist. In this bizarre effort to depict Schmitt as a diabolical nemesis committed to the Nazification of the world, even the distinction "friend/enemy" is mistranslated as "friend/ foe," (21) which unintendedly describes correctly the way in which the Schmitt discussion has been reconfigured.

Schmitt's Analysis of the US

Along with most European scholars of his generation, Schmitt did not have any direct experience of l'Amerique profonde, and limited himself to discussing the US strictly from the viewpoint of international law and foreign policy. Yet, although these studies--especially those written following his expulsion from the Nazi Party in 1936--are primarily historical and as tied to immediate political problems as all of his other works, they cover broad time spans and provide heuristic insights into contemporary political predicaments. As a conservative intellectual deeply committed to German interests, Schmitt resented the US for imposing the Versailles Treaty on Germany and consequently devastating the German economy in the early 1920s, (22) for having introduced a discriminatory concept of war during WWI, (23) and for his own incarceration as a potential war criminal by American occupation forces from September 1945 to March 1947. (24) Nevertheless, he was in awe of the US and its impact on Europe and the rest of the world. He even considered the American Monroe Doctrine, enunciated early in the 19th century, to be the model for a possible new world order based on Grossraume--although he lamented the fact that the US had abandoned this strategy at the end of the 19th century, and had become an imperialist power. (25) Schmitt's last major work, Der Nomos der Erde, describes "the Eurocentric epoch" of world history as beginning with the discovery of America and ending with the rise of the US as a world power. (26)

According to Schmitt, the US was very interested in participating in international economic affairs, while remaining politically distant and thus unaccountable to anyone. This ambiguity of American foreign policy eventually became, and remains, a problem for world order. After the collapse of the Soviet empire, the US became a global system allegedly regulated by a neutral market, but under de facto US hegemony. The ambiguity remains. (27) A prime example is the American government's response to the Sept. 11 attacks, which it defines both as (a-political) international criminal deeds and as (political) war acts. Thereby, it introduced a new concept of war and legitimated military intervention anywhere, while reserving the right to decide unilaterally which actions to take.

These crucial issues are apparently of little interest to the new Schmitt critics. Instead, they remain obsessed with Schmitt's politics during the Third Reich, and insist on transposing these experiences into an altogether different historical context, while quixotically charging the long-since demolished windmills of Nazi and fascist ideas as hidden intellectual resources for American conservatives. (28) Following in the footsteps (or, rather, missteps) of otherwise respected historians, such as George Mosse,
(29) who unwarrantedly charged Schmitt with subscribing to the theory of the Aryan race, or Jeffrey Heft, who insists on reading Schmitt as one of the more irrational "conservative revolutionaries," (30) these self-appointed ideological gate-keepers (31) have managed to restrict the American reception of Schmitt's ideas to the least relevant of his contributions, inextricably rooted in pre-1936 European realities and impossible to transpose either to an American context or to apply to today's international affairs.
(32) Most recent works and discussions are predicated on the unwarranted and unsubstantiated assumption that Schmitt's involvement with Nazism was not merely a matter of opportunism or bad judgement, but the result of a profound affinity between his thought and the ideology the enthymeme that any appropriation of these ideas will probably have the same results they had in Germany in the early 1930s, especially if the US enters into an economic crisis of similar dimensions.

These American anti-Schmittians ignore the fact that Schmitt opposed both the communist and the Nazi parties during the Weimar Republic (34) (and secretly conspired with the German army in Berlin until the very last minute to keep the Nazis out of power); (35) that the Nazis were always suspicious of him as not being a real Nazi; that his emphasis on the state rather than on the party after Hitler's rise to power resulted in his expulsion from the Nazi Party in 1936; (36) and that thereafter he was under surveillance, had his mail read, and had political observers at his lectures. Disregarding their own claims to be sensitive to socio-historical particularity and cultural specificity, these anti-Schmittians conflate past and present, earlier European realities with contemporary American experiences, (37) and end up projecting the political predicament of Germany in the 1930s onto today's US, which has entirely different political traditions, where fascism has never been a threat, and whose internal conflicts can be understood only by deploying a different conceptual apparatus.

The objective of this inflation of Schmitt's ideas as the possible juridical justification for an ever-present fascist/Nazi threat is to provide increasingly conformist Left academics with the kind of legitimation and content their "emancipatory" socialist ideology needs after bureaucratic centralism became discredited with the collapse of the USSR. Thus, anti-fascism has become the eschatological core of an otherwise vacuous Left ideology now reconfigured as the legitimating arm of the managerial state. (38) No longer able to present themselves as the vanguard of progressive forces paving the way for a bright socialist future, they have now regrouped as part of an academic rear-guard entrusted with protecting "civil society" and liberal values against the market and other forces of darkness--a kind of quixotic kathekon seeking to prevent a recurrence of the fascist experience in a context where there has never been any such threat.

The proposed scenario is crystal-clear: during economic crises, Schmitt can provide "neo-conservative forces" (39) with the intellectual resources needed to justify suspension of "the rule of law" and, as in the case of the Weimar Republic, to deploy repressive measures necessary to uphold existing relations of domination threatened by "democratic" forces demanding containment or overthrow of capitalism. (40) Translated into American political realities, where there is hardly a peep anywhere into American political realities, where there is hardly a peep anywhere about socialism (except for a few "politically correct" academic islands), this model ends up ascribing to "democratic forces" a defensive role: to prevent the alleged roll-back of the welfare state and to oppose other austerity policies under the Reagan and succeeding administrations. Plausible as an account of what may have taken place in some Third World countries, e. g., Chile in the early 1970s, (41) whose economy was about to be destroyed by the introduction of "socialist planning" and the nationalization of private enterprises, this worn-out Diamat model makes no sense when projected onto the US.

The Fascist Threat

According to McCormick: "Fascism ... has not been locked away forever but rather lives on--not only in `developing' areas of South America, Africa, and Eastern Europe, but elsewhere in Europe and in the United States." (42) Alleged evidence for this claim is an unsubstantiated resurgence of "neo-Nazism, militia movements, `Christian identity' ideologies, ethnic cleansing, racially motivated mass rape, violent attacks on immigrant workers and foreigners, bombing of abortion clinics and state administrative buildings, and assasination of the proponents of peace." (43) Such frightening scenarios, however, can only be the inventions of a paranoid imagination. Nothing of the kind has occurred recently in either the US or Western Europe. Some of these horrible, scattered events have occurred in remote parts of the globe during the past few years, largely in connection with brutal civil wars in pre-modern societies being forced to become nations in the post-colonial era. They cannot be taken out of context and projected indiscriminately onto advanced industrial societies. (The Middle East is a special case). Crime statistics in the US have been going down for the past several years, and, except for exceptional terrorist acts such as those on Sept. 11 or other scattered incidents, the country has not been this safe and peaceful in many years.

While some of the horrors McCormick lists, such as ethnic cleansing and racially motivated mass rape, occurred briefly in places such as Bosnia or remote corners of Africa, it is absurd to claim that this is happening or is likely to happen in the foreseeable future in North America or Europe. While there have been some occasional outbursts of neo-Nazism in places such as Germany, Great Britain, and Russia, by numerically irrelevant and politically meaningless gangs, it is preposterous to think that wannabe-Hitlers are everywhere. The success of the various Le Pens, Haiders, Bossis, et. al. represent, at best, vague populist protests easily coopted within mainstream political parties. Even the Oklahoma City bombing, no matter how misguided and deplorable it was, cannot be associated with anything resembling fascism. It was planned and executed as revenge for the Waco incident and, more generally, as revenge for what the perpetrators interpreted to be an unconstitutional power grab by the federal government. If anything, it could be construed as a misguided reaction against what was misperceived as "fascist" abuses by the American government. (44) But this is the real problem with the anti-Schmittians demonization of both Schmitt and fascism: a profound misunderstanding of fascism as a concrete historical phenomenon and its interpretation through a crude Marxist philosophy of history predicated on the inevitability of "progress."

McCormick's approach, shared by Scheuerman, Dyzenhaus, and others, deals with fascism as "attempts to stake out secure positions against the rapidly changing socioeconomic landscape in the supposedly timeless entities of family, nation, and faith." (45) This is a variation on the old Diamat account of the historically obsolete relations of production clashing with the new forces of production. As a result, existing social relations (capitalism) refuse to adapt to new realities by implementing fundamental changes (presumably, the institutionalization of socialism), thus precipitating the suspension of "the rule of law," the imposition of authoritarian measures, and the suppression of democracy. From this viewpoint, far from being another modernizing ideology--no matter how brutal and destructive it may have been--fascism is the last resort for conservative forces seeking to retain existing relations of privilege that stand in the way of human emancipation. (46) This is why so much effort is exerted to demonstrate a non-existent connection between Schmitt's ideas and those of American conservatives, presumably caught in the same bind as German capitalists during the last days of the Weimar Republic, when "progressive forces" allegedly threatened German relations of production (capitalism). (47) When push comes to shove and the existing legal structure ("the rule of law") becomes an obstacle to an effective defense of the status quo, then Schmitt's theories concerning the state of exception and other legal means to remove any obstacles preventing the implementation of outright authoritarian measures become essential to conservative political strategies. This is why it is necessary to checkmate Schmitt's influence before it becomes a powerful weapon in the hands of threatened capitalists, allegedly ins ensitive to liberal institutions and fundamental freedoms. This is also why the defense of "the rule of law" is of such importance: allegedly, Schmitt's ideas provide the theoretical tools to legitimate setting aside the rule of law, thus paving the way for the worst forms of authoritarian regimes.

The Rule of Law and its Foundations

Dyzenhaus' Legality and Legitimacy provides a paradigmatic example of this predicament. Like Scheuerman, Dyzenhaus is particularly interested in the liberal "rule of law," which, in his view, was promoted by the likes of Hans Kelsen and Hermann Heller, but not by Schmitt, who allegedly politicized law in order to destroy it. In Anglo-American "common law," legal indeterminacy is resolved by granting a great deal of latitude to judges (who are elected, rather than appointed, as in the continental system of codified law), thus privileging democracy over liberal principles, and empowering a jury of one's peers (who presumably embody the spirit of the people). In contrast, "the rule of law" is positive law enacted and applied by professionals committed to follow objectified principles of justice, presumably universally valid and independent of the wills of any particular community (the primacy of liberalism over democratic self-determination).

Yet, Schmitt never sought to politicize law. The objective was to put it on more solid foundations ("concrete orders") than mere abstract principles, whose fundamental indeterminacy had facilitated the Nazi rise to power. Both Kelsen's and Heller's concepts of the "rule of law" presupposed a stable constitutional order, which did not exist during the Weimar Republic. Schmitt's theories addressed precisely such an unstable situation by emphasizing and promoting reference to the socio-historical and cultural foundations of law. (48)

Both Scheuerman's and Dyzenhaus' focus on the "rule of law" (49) (that Schmitt allegedly opposed) is meant to protect against fascist and Nazi arbitrariness. For them, the traditions and customs that define communities are what they were for Enlightenment ideologues just before the French Revolution: so much superstition and myth able to justify anything, including Nazi racial views and the institutionalization of anti-Semitism. Scheuerman indicts all American political realists (including Hans Morgenthau) as crypto-Nazis for allegedly following in Schmitt's footsteps in advocating the "end of law." (50) Dyzenhaus emphasizes what he calls the "legitimacy of legality," which was Heller's view, and consequently disregards the fact that it was precisely this type of positivistic "legality," predicated on the arbitrary will of legislators and jurists uprooted from their cultural moorings, that had brought Hitler to power, and that Schmitt had warned against.

Following the discredited analyses of 1950s "end of ideology" sociologists and historians, such as Richard Hofstadter, Seymour Martin Lipset, and Daniel Bell, which practically identified traditional American commitments to direct democracy with fascist reaction, (51) McCormick is even more explicit in identifying popular will
(democracy) as tendentially fascist: allegedly, popular culture in the US and abroad exhibits "an intensifying fundamentalism, in many respects frighteningly reminiscent of Schmitt's fascism." Reacting against "the rapidly changing socioeconomic landscape," people gravitate toward fascism when they vindicate the primacy of "family, nation, and faith" (52)--the institutional framework within which people normally operate and which gives meaning to their lives. Suddenly, "family, nation, and faith" are suspect. It is "the socio-economic landscape" that is primary (the mythical Marxist forces of production that are not being allowed to determine the cultural superstructure as mandated by historical materialism), i. e., a truth more true than the lifeworld of ordinary people, whose democratic prerogatives are legitimate only when they happen to result in the politically correct choices deducible from abstract liberal principles. Democratic choices are legitimate only when they are in step with the otherwise inevitable march of "progress." They become tendentially fascist when they insist on defending traditions and lifestyles that are anathema to new "socioeconomic landscapes" defined by whatever new cultural fads happen to be celebrated by Hollywood and a culture industry concerned primarily with advertising commodities that can be produced and marketed profitably. Forgotten here is the historical fact that it was precisely Protestant fundamentalists committed to defending their traditions and customs that laid the foundations for the new social arrangements they institutionalized in the US. Objectified into concrete political forms, such as the US Constitution, this worldview hypostatized tolerance and the various liberties guaranteed by the "Bill of Rights" as the new country's most coveted principles, precisely in order to protect those who, unwilling to conform to the predominant "socioeconomic landscape" of the societies they had left behind, sought legal protections for their traditional lifestyles.

Universalized out of their cultural and historical context, these traditional liberal values are no longer seen as the particular achievement of a particular people. Rather, they are viewed as absolute norms and inviolable principles derived from the kind of rationality accessible only by New Class intellectuals, experts and professionals, whose objectification in "the role of law" can override any allegedly "fascist" choice, no matter how much democratic legitimacy they may have. As in the theological critique of idolatry, the idol displaces the spirit, and precipitates the kind of reification identified so forcefully by Western Marxists and other critics as the fundamental problem of modern society. Along with any fundamentalism that refuses to regard itself as binding only for those willingly adhering to its norms, a "role of law" deduced from allegedly apodictic rational principles chokes democratic prerogatives and, because of its inescapable in determinacy, paves the way for arbitrary interpretations, instrumentalizations, and the worst possible excesses.

Schmitt was aware of this problem, especially after the Weimar Republic's disintegration into the Third Reich. This is why, unlike Kelsen and Heller, he always saw "the legal order" in concrete terms, grounded in the traditions and customs of the society that enacted it, rather than in terms of liberal legality predicated on ever growing legislative mandates (what Schmitt called "motorized legislation"). After he became acquainted with Maurice Hauriou's work, (53) in the late 1920s, Schmitt began to emphasize the pre-legal institutional framework that he characterized as "concrete order." Soon after the Nazis came to power, Schmitt, in an ultimately failed attempt to contain them, elaborated on this broader understanding of juridical thinking, by emphasizing the primacy of the state--and the traditional values it embodied--over the Nazi Party. (54) Among other things, this is one of the main reasons why he was eventually thrown out of the Nazi Party in 1936.

According to Scheuermann: "The concrete-order theory ... represents the perfect theoretical expression of Schmitt's hostility to liberal conceptions of a system of codified, general law. Its underlying insight is that society needs to be conceived as a series of variegated communities or `orders' having highly specific needs resistant to codification by general legal norms or concepts." (55) But Schmitt never saw "concrete orders" as intrinsically recalcitrant to codification. Yet, codification is impossible apart from a pre-given, concrete axiological dimension. And even in the case of the most successful codification, to the extent that general legal norms cannot cover all possibilities (in particular, the exception), they constantly need to refer to a pre-legal dimension in order to resolve this indeterminacy. (56)

The Critique of Technology

There is absolutely nothing "fascist" about all this. Unless categorical objectifications (including, first and foremost, the legal order) are grounded in some pre-conceptual dimension, the system of which they are a part tends to self-destruct. This is a predicament that, in some way or other, was confronted by some of the best minds of Schmitt's generation as they sought to solve related problems. This is the context defining, among others, Theodor W. Adorno's articulation of identity logic, Edmund Husserl's critique of naturalism, John Dewey's account of the naturalistic fallacy, Ludwig Wittgenstein's vindication of the primacy of forms of life, or Alfred North Whitehead's warnings about misplaced concreteness. As in the case of the unabridgeable gap obtaining between legal structures and all the concrete cases they must cover, being and thought do not and cannot correspond. Being always exceeds thought, and the elimination of the resulting residue by Enlightenment ideology leads to thought redefinition being done exclusively in terms of its abstract concepts (identity logic). The result is an ungrounded rationalism articulated through instrumental reason that can accommodate any political agenda, and can turn into the mad rationality typical of Nazi ideology. (57) The only solution is to ground this rationalism in the pre-rational and pre-conceptual dimension that has become occluded or forgotten: through mimesis for Adorno; in the lifeworld for Husserl; in experience for Dewey; in "concrete orders" for Schmitt, by returning to Being for Heidegger, in "forms of life" for Wittgenstein, etc.

All of this is part of the critique of technology by Heidegger, Schmitt, and many other conservative thinkers, and it has little to do with computers or machinery, which are indicted only when they contribute to this kind of "forgetting." It is a critique of "the forgetting of Being," or of becoming unable to think beyond prefabricated conceptual structures that have lost touch with their grounding and, therefore, can readily be instrumentalized by, e. g., the culture industry or totalitarian regimes. It is also a critique of that same "alienation" that a few original Marxist thinkers who managed to survive Stalinism began to articulate after WWII, following the publication of Marx's Economic-Philosophical Manuscripts of 1844, and which had such an impact on the New Left in the 1960s. (58) The notorious pessimism and elitism of the Frankfurt School was due primarily to their inability to envision how these conditions could be reversed, so that concrete being, and not its abstract otherness, could be accessed by means other than that art and philosophy practiced only by a few artists and intellectuals (Adorno). (59) Other critics were somewhat more optimistic in proposing solutions, such as a return to the ever-available pre-conceptual lifeworld (Husserl), (60) by privileging experience over purely instrumental concepts (Dewey), (61) and by emphasizing "forms of life" over "forms of thought" (Wittgenstein). (62) Even Georg Lukacs defined the concreteness necessary for a viable materialist analysis--something that an alienated social-democratic thought terminally fragmented by positivism was no longer able to deliver--in terms of relation to a totality in which being and thought were dialectically related. (63)

The critique of legal positivism or of "the rule of law" proceeds along these lines. Predicated on a set of abstract norms, the managerial-liberal "rule of law" is subject to a variety of interpretations, some of which can end up legitimating practically anything, including Nazi racial policies. The dialectic of enlightenment unfolds precisely by such a diabolical reversal of abstract rationality into myths much worse than those supposedly left behind, and with much more disastrous consequences. Grounded in nothing but its pretenses to embody universally valid and apodictic truths or the arbitrary whims of legislators representing particularistic interests, the managerial-liberal rule of law can readily legitimate the most racist of policies by hypostatizing the inferiority or even intrinsic evil of particular groups, instead of preferring the similarly abstract assumption of the equality of humankind. Adorno's mimesis as a means to access an uncontaminated dimension able to resolve indeterminacy and arbitrariness is not all that different from Schmitt's recourse to concrete orders as the horizon allowing for a resolution of the problem of legal indeterminacy. (64) And Schmitt also drew conclusions similar to Adorno's concerning the logic that facilitated the advent of Nazism. According to Schmitt, it was precisely the inability to deal with the indeterminacy of managerial-liberal law that brought Hitler to power. (65) A post-liberal alternative to legal positivism was not an option, but a necessity. It was the only way to salvage what he could from the ruins of Weimar.

Schmitt understood law to be more than a mere aggregation of abstract rules. Already in 1934, in re-examining the history of law, he argued that the meaning of the Greek concept of nomos is not law, rule, or norm, but above all order, by which he meant that any domestic legal order must be based on something more than mere rules. (66) Given the unstable constitutional predicament of the Weimar Republic and European public life after WWI, Schmitt sought a concrete foundation for law, able to withstand unstable social and economic conditions and the vagaries of politics--even more so after the Nazi's rise to power, when the regime's arbitrariness may have been contained by reference to more solid groundings than racial myths. He had no intention of politicizing law, but rather sought to ground it in the lifeworld of a particular people. (67) As he often reiterated, all law makes sense only at a particular time and in a particular place. Clearly, if concrete orders such as tradition, family, community, and faith are regarded as the building blocks of fascism, then most societies have been "fascist" since time immemorial. No legitimate legal order can be abstracted from these "concrete orders" without law deteriorating into the abstract and instrumental tool of any party, as it did with the Nazi Party in Germany and with the Communist Party in the Soviet Union.

The Critique of Liberalism

The anti-Schmittians' notion of "fascism" has little to do with Italian fascism or German Nazism, but is a convenient label to discredit all thinkers and movements considered to be "anti-liberal." Similarly, the label "anti-liberal" bears little relation to critics of classical liberalism as a political system, but refers instead to critics of managerial liberalism, all of whom are immediately considered by managerial liberals to be enemies--or, rather, foes--of liberalism. (68) By liberalism, the anti-Schmittians really mean a managerial liberalism regulating the welfare state or social-democracy. Historically, even within classical liberalism, there were significant differences between, e. g., the European and the American varieties. Even within European liberalism, German liberalism was a special case--a particularly weak one--which is precisely the predicament Schmitt addressed. (69) However, these particular weaknesses of German liberalism were general "liberal" weaknesses and, therefore, Schmitt's critique of liberalism was not necessarily limited only to Germany, but applied to Europe in general. He was not impressed by the "liberal state," which he considered to be a political fiction masquerading as a fact. This is why he sought to encourage liberals to think "politically." According to Leo Strauss, Schmitt was not an enemy of liberalism, but rather a critic of the failure of liberalism. (70) For Schmitt, liberalism, the high point of modernity, is characterized by the negation of the political--a serious problem especially for Germany after WWI, when its sovereignty was jeopardized by the Treaty of Versailles. More generally, however, this decline of the political was not an accident, but liberalism's original goal. Thus, if liberalism had lost its way, it had to be replaced by some other system difficult to prefigure at that time. (71)

Often misunderstood as a critique of Schmitt, Strauss' essay is primarily explanatory, i. e., emphasizing what Schmitt had assumed, but not explicitly stated. Thus, American anti-Schmittians are correct in claiming that in many respect Strauss agreed with Schmitt. Strauss recognized that, despite all its defects, the "astoundingly consistent system of liberal thought" had yet to be displaced by another one. Unlike the enemies of liberalism, such as fascists and Nazis, who had an alternative to it, Schmitt did not. Thus, according to Strauss, Schmitt's critique of liberalism is an internal one that "takes place within the horizon of liberalism." (72) Whatever "illiberal tendencies" there may have been, they were "arrested by the as yet undefeated `systematics of liberal thinking' ... [Schmitt's] intention was to do no more than provide `a theoretical framework for an immense problem'." No matter how general, Schmitt's critique was focused specifically on Weimar Germany, and was never meant to be extended to American liberalism or "liberal-democracy"--a term he would have found a contradictio ad absurdum. While he did criticize the kind of liberal universalism being promoted at the time by the League of Nations and American imperialism, his main focus remained always on the weaknesses of German liberalism at that time.

This weak liberal system was eventually displaced through what James Burnham called the "managerial revolution," (73) by a new class of state administrators who gained political power by manipulating popular rhetoric and egalitarian slogans. This feature was shared by Soviet communism, National Socialism, and welfare-state democracy. More to the point, liberalism survived as a series of social programs informed by a vague egalitarian spirit, and totalized by its opposition to anti-liberal critics. According to Gottfried: "By the end of the twentieth century, liberalism has become a pillar of whatever liberal democracy the United States and its imitators are thought to embody," (74) while the "consolidation of the managerial state and the imposition of its pluralist ideology" had become "the defining features of contemporary Western life." (75) More precisely, managerial liberalism has given way to a managerial democracy within which liberal principles, such as freedom of speech and association, are readily set aside whenever political expediency requires it. (76) Schmitt realized the extent to which civil society already had penetrated the state, and vice-versa. His focus, however, especially after 1936, was entirely on international relations and the defense of the political as a defining dimension of national sovereignty, which helps explain the main reasons for his critique of liberalism and his unwillingness to speculate about possible replacements.

Since the American anti-Schmittians claim that Schmitt was already a fascist or a Nazi during the Weimar Republic, they cannot accept Strauss' analysis, and attack him too. Thus, McCormick claims to read Schmitt "against himself," while holding him "accountable for the many distortions and misrepresentations of the Enlightenment tradition to which he so often resorts in his writings." (77) While Cristi brands as "apologists" all those who argue that Schmitt's Nazi career resulted from a flawed moral character, and contends that Schmitt embaced Nazi racist policies, his reconstruction resembles that of the "apologists." Accordingly, he claims that only "contempt for the reality of the political would allow one to pretend that a system of legality could sustain itself and maintain no reference to a substantive order of things. If liberalism were to be identified with this apolitical view, then Schmitt was an unswerving critic; if liberalism were to restrict its apoliticism to the sphere of civil society, and to acknowledge the necessity of a sovereign state that retained the monopoly of the political, Schmitt would not object to conservative or authoritarian liberalism." (78)

Cristi acknowledges that Schmitt was primarily concerned with securing the state's autonomy, and that there is nothing "totalitarian" about this: "A strong state ... did not imply cancelling civil society's own independence. If totalitarianism means that the state ultimately assimilates and metabolizes civil society, at no point of his intellectual development did Schmitt espouse a totalitarian view. On the contrary, he thought that an autonomous state would prove its strength by affirming the freedom and autonomy of civil society." (79) This is why Cristi criticizes Heinreich Meier's reading of Schmitt as an anti-liberal and a religious thinker, and the attempt to contrapose Schmitt to Strauss. (80)

All American anti-Schmittians thank each other, quote each other, and compliment each other. They all tackle subjects that have been dealt with by experts, but ignore these works with a trick that, for lack of a better term, Dyzenhaus calls "integrative jurisprudence," i. e., they abstract from the historical context of Schmitt's writings in order to deal with his ideas as they see fit. When the facts do not fit Dyzenhaus' thesis, he deploys what he calls "deep structure" analysis, and when Schmitt's writings do not prove his case, he speculates that "it must have followed" or "he must have meant." Thus, allegedly, Schmitt's emphasis on the primacy of the state during the crisis of the Weimar Republic "connected his 1917 work on dictatorship (administration as Urzustand, or original state of affairs), to his 1931-32 search for the state's substance in authoritarian executive control free from pluralistic party influence, to his 1935-36 theoretical and historical work on the `concrete order' of the Nazi state." (81)

Similarly, Peter Caldwell presents Schmitt as an advocate of dictatorship and as the enemy of democracy from the very beginning of his career. This means that Schmitt was conspiring to undermine the Weimar Republic even before it existed. Caldwell claims that conservative historiography "obscures the way one's concept of constitutional democracy, associated with Carl Schmitt and Chancellor von Papen, undermined other aspects of the Weimar Constitution, and thus laid the groundwork for the Nazi takeover." (82) Schmitt, however, was not associated with Papen, but with Kurt von Schleicher. (83)

The comedy of errors and falsifications goes on, in order to legitimate the new managerial democracy confused with the long-gone liberalism that Schmitt criticized. By keeping the focus on the ghosts of Nazism and fascism, the anti-Schmittians manage to avoid confronting the problems that the new system creates, such as the continuing manipulation of public opinion, the rule of an unaccountable and inefficient bureaucratic apparatus, the increasing marginalization of local self-determination, and the hypocrisy of an American system advocating universality and neutrality, while instrumentalizing both in the pursuit of its own self-interest. Charging the windmills of fascism and Nazism, which no one in his right mind today would defend, and mystifying Schmitt's ideas, which very few seem to understand, may help the anti-Schmittians reinforce a sense of moral superiority and contribute to advancing the careers of otherwise mediocre scribes. But it does not help understand or resolve the contradictions of an age of collective decadence and luxurious nihilism.

Notes:

(1.) An earlier draft of this article was read at a conference devoted to "Carl Schmitt: Pensatore Politico del XX Secolo," held in Rome, November 27, 2001.

(2.) Indicative of this German tradition is a 1987 symposium on Schmitt and the critique of liberalism, where Karl Hansen acknowledged that, after WWII, Schmitt had been turned into an "object that symbolized the past to be overcome," and that "to distance oneself from Schmitt was to distance oneself from National Socialism." See Karl Hansen and Hans Lietzmann, eds., Carl Schmitt und die Liberalismuskritik (Opladen: Leske & Budrich, 1988). In the same symposium, Dieter Haselbach also articulated the view, widespread at that time within the German Left, that Schmitt was the source for the neo-conservative political agenda and the "Reagan revolution," and that his analyses of Weimar's political and constitutional problems had become "a foil for criticizing emancipatory tendencies in American society." For a devastating critique of the whole symposium, see Joseph Bendersky, "Carl Schmitt as Occasio," in Telos 78 (Winter 1988-89), pp. 191-208.

(3.) According to Scheuerman, "Schmitt exerted a subterranean influence on postwar American political thought" and "helped determine the contours of political thinking in the United States [after] 1945." See William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowan & Littlefield, 1999), pp. 1 and 12. Emanuel Richter also claims that after WWII there was a "silent reception" of Schmitt's ideas among German intellectuals who had been forced into exile by the Nazi regime--a mysterious "talkative silence" resulting from their embarrassment at the prospect of having to confront openly Schmitt's "shameful intellectual heritage." See Emanuel Richter, "Carl Schmitt: The Defective Guidance for the Critique of Political Liberalism," in Cardozo Law Review, Vol. 21, Nos. 5-6 (May 2000), pp. 1621-22. As Bendersky demonstrates, however, there is no evidence of any such influence on the emigre intellectuals in question: Friedrich Hayek, Hans Morgantau, Joseph Schumpeter and Leo Strauss. See Joseph W. Bendersky, "The Definitive and the Dubious: Carl Schmitt's Influence on Conservative Political and Legal Theory in the US," in this issue of Telos.

(4.) George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936 (1970), 2nd ed. (New York: Greenwood Press, 1989), p. vi.

(5.) See Nicholas Meriwether, "Discourse Ethics and the Problem of Oppression," in Telos 119 (Spring 2001), pp. 99-114.

(6.) As Schmitt never tired of emphasizing as part of his critique of universalism, political concepts are always answers to particular problems and make sense only in the specific context within which they are formulated. He even warned against the automatic transposition of concepts from one discipline to another: "The greatest and most egregious misunderstandings ... can be explained by the erroneous transfer of a concept at home in one sphere ... to other spheres of intellectual life." See Carl Schmitt, "The Age of Neutralizations and Depoliticizations (1929)," in Telos 96 (Summer 1993), pp. 134ff.

(7.) Because of lack of serious discussion, after WWII all of these ideologies were readily stereotyped and homogenized according to the political needs of the Cold War. Stalin's successful liquidation in the late 1930s of all internal dissidents as traitors--to the point of murdering people like Leon Trotsky and Nikolai Bukharin--had already facilitated the imposition of the Comintern's official interpretation of fascism as the only legitimate one (Georgi Dimitrov's crude account as the last stand of the reactionary bourgeoisie). For the most succinct account of the Third International account of fascism, see Nicos Poulantzas, Fascism and Dictatorship: The Third International and the Problem of Fascism, tr. by Judith White (London: Verso, 1979). Still unwittingly embroiled in Comintern political and theoretical hegemony, even the anti-Stalinist Left, including sophisticated circles such as the Frankfurt School, were unable to come up with anything radically different. They also saw fascism as a permanent possibility within advanced capitalist societies: a regime bent on manipulating mass consciousness. Defeated on the battlefield, fascism was thus ultimately triumphant within the winning countries themselves. Similarly, the American Right, culminating with the McCarthyism of the 1950s, dismissed all branches of an increasingly fragmented Left as part of a monolithic Stalinist conspiracy to attain world domination by penetrating and corrupting even the highest levels of the US government.

(8.) Schmitt prefigured this scenario in the late 1930's. See Carl Schmitt, "Grossraum gegen Universalismus (1939): Die volkerrechtliche Kampf um die Monroedoktrin," in Carl Schmitt, Positionen und Begriffe im Kampf mit Weimar--Genf--Versailles 19231939 (Berlin: Duncker & Humblot, [1940], 2nd ed., 1988), pp. 295-302, and Volkerrechtliche Grossraumordnung mit Interventionsverbot fur raumfremde Machte (Berlin: Duncker & Humblot, [1941], 2nd. ed., 1991).

(9.) See Paul Piccone, "So, This is the Brave New World Order!" in Telos 120 (Summer 2001), pp. 178ff. Immediately after the collapse of the USSR and the end of the Cold War, the first Bush Administration sought to continue and actually to broaden the Cold War policy of multilateralism, especially during the Gulf War when, for diplomatic as well as logistical reasons, American strategy was subordinated to--or at least compromised with--that of the "coalition" assembled to carry out the operation. The results turned out to be less than satisfactory. The decision not to take Baghdad, and to leave Saddam Hussein in power, out of deference to the demands of Arab allies and Turkish Realpolitik, resulted in a stalemate that may have been misperceived as American or Western weakness, and have emboldened fanatic fundamendalist Muslims to carry out the September 11 attacks. Already practically repudiated well before recent events, with the American refusal to join in several international initiatives such as the Kyoto Agreement or the Johannesburg conference, after September 11 it is unlikely that many more compromises will be made to appease "world opinion"--despite the problems this approach creates.

(10.) See Paul Piccone, "Postmodern Populism," in Telos 103 (Spring 1995); and Pierre-Andre Taguieff, "Political Science Confronts Populism," in the same issue.

(11.) This interpretation has been thoroughly rejected by recent historiography. For some of the most detailed analyses, see Zeev Sternhell, Neither Right nor Left (Berkeley: University of California Press, 1986); A. James Gregor, Interpretations of Fascism (Morristown, NJ: General Learning Press, 1974); Stanley G. Payne, A History of Fascism
(London: UCL Press, 1995); Roger Griffin, The Nature of Fascism (London: Routledge, 1993); Mark Neocleous, Fascism (Buckingham: Open University Press, 1997). For a comprehensive review of this literature and other related discussions, see Luciano Pellicani, "Was Fascism Revolutionary?" in this issue of Telos.

(12.) Schwab, The Challenge of the Exception, op. cit. In the introduction to this text, whose first draft was originally a rejected Ph. D. dissertation, Schwab describes the tribulations he had to endure for dating to deal with Schmitt's ideas in the already "politically correct" climate of Columbia University in the 1960s.

(13.) John P. McCormick, Carl Schmitt's Critique of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, 1997), pp. 15ff. and 302ff. McCormick provides no evidence to support his claim that the conservative thinkers in question ever read Schmitt or in some cases even knew who he was.

(14.) Paul Gottfried, Carl Schmitt: Politics and Theory (Westport: Greenwood, 1990). Despite his numerous criticisms of "liberalism," Gottfried defines himself as a "paleoconservative" in order to distance himself from mainstream American conservatism. He is admittedly a classical 19th century liberal who objects only to the kind of "managerial liberalism" that has gradually displaced classical liberalism in the 20th century. See Paul Gottfried, After Liberalism: Mass Democracy in the Managerial State
(Princeton: Princeton University Press, 1999). As for "certified" conservative American publications and foundations, they have never paid any attention to Schmitt. In the rare occasions his name comes up, he is summarily dismissed as a Nazi ideologue whose work is automatically assumed to be irrelevant to American politics. In addition to al this, the anti-Schmittians confuse neo-conservatism with conservatism. Not only are the two not the same, but their followers despise each other even more than they despise their Left opponents. McCormick is appalled that Gottfried is so right-wing as to define himself as a "paleoconservative" in contraposition to "neoconservatives." See McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 15n. Had he attempted to determine the real differences between the two, McCormick would have realized that paleoconservatives differ from neo-conservatives in opposing the kind of managerial liberalism the latter support, in favor of a traditional laissez-faire liberalism. Neoconservatives, on the other hand, are dissident managerial liberals who differ from other ordinary managerial liberals only in cultural matters. Even more than what remains of the Left, the Right is also terminally fragmented and unable, except on rare occasions such as during the so-called "Reagan Revolution," to coalesce into any coherent political force. See Paul Piccone, "The Crisis of American Conservatism," in Telos 74 (Winter 1987-88), pp. 3-30.

(15.) See Joseph W. Bendersky, "Carl Schmitt as Occasio," in Telos 78 (Winter 1988-98), p. 203ff.

(16.) See Scheuerman, Carl Schmitt, op. cit., p. 1; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997), p. 98ff.; and McCormick, Carl Schmitt's Critique of Liberalism: Against Politics as Technology, op. cit., p. 15.

(17.) This split within the Left goes back to fundamental differences between Karl Marx's collectivism and Jean-Pierre Proudhon's federalism, V. I. Lenin's bureaucratic centralism, Gustav Landauer's communitarianism, Rudolf Bahro's really-existing socialism and New Left utopianism. It is what, immediately after WWII, Maurice Merleau-Ponty defined as "Eastern" and "Western" Marxist traditions, and Ernst Bloch identified as "warm" and "cold" streams within Marxism. There is also a tactical continuity between the orthodox Marxist tradition and the new soi-disant "liberal-democratic" Schmitt demonizers: whenever unable to exterminate physically or to banish to the Gulag their Left opponents, orthodox Marxist-Leninists also resorted to smears, distortions, and falsifications.

(18.) See Norberto Bobbio, "Is there a Marxist Theory of the State?" and "Are there Alternatives to Representative Democracy?" both in Telos 35 (Spring 1978), pp. 5-16 and
17-30; Frank Adler, "Norberto Bobbio at 80," in Telos 82 (Winter 1989-90), pp. 130-133.

(19.) Telos 72 (Summer 1987).

(20.) See G. L. Ulmen, "Return of the Foe"; and George Schwab, "Enemy or Foe: A conflict of Modern Politics," both in Telos 72 (Summer 1987), pp. 187-193 and 194-201.

(21.) See William E. Scheuerman, Between the Norm and the Exception, The Frankfurt School and the Rule of Law (Cambridge, MA: The MIT Press, 1994), p. 8ff.

(22.) Cf. Carl Schmitt, "Die Rheinlande als Objekt internationaler Politik," "Der Volkerbund und Europa," and "Volkerrechtliche Formen des modernen Imperialismus," all in Schmitt, Positionen und Begriffe, op. cit., pp. 26-33, 90-94, and 174-180.

(23.) Carl Schmitt, Die Wendung zum diskriminierende Kriegsbegriff (Munich: Duncker & Humblot, 1938), and Das international-rechtliche Verbrechen des Angriffskrieges und der Grundsatz "Nullum crimen, nulla poena sine lege," ed. with notes and an epilogue by Helmut Quaritsch (Berlin: Duncker & Humblot, 1994).

(24.) Cf. Carl Schmitt, Ex Capitivitate Salus: Erfahrungen der Zeit 1945/47 (Cologne: Greven Verlag, 1950), although Schmitt makes no mention of the US in this work.

(25.) See G. L. Ulmen, "American Imperialism and International Law: Carl Schmitt on the US in World Affairs," in Telos 72 (Summer 1987), pp. 43-71.

(26.) While many of Schmitt's works written before WWII have been translated into English, almost nothing he wrote thereafter has been either translated or discussed. The translation of the most important of these works, written during WWII and eventually published in 1950, is about to be published: The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, tr. by G. L. Ulmen (New York: Telos Press, 2002). For rare discussions in English of the significance of this later work, see Giacomo Marramao, "The Exile of the Nomos: For a Critical Profile of Carl Schmitt," in Cardozo Law Review, Vol. 21, No. 3-4, (May 2000), pp. 1583-1587; and Jean-Frangois Kervegan, "Carl Schmitt and `World Unity'," in Chantal Mouffe, ed., The Challenge of Carl Schmitt (London: Verso, 1999), pp. 54-74. Neither author is American.

(27.) See Gary Ulmen, "The Military Significance of September 11," in Telos 121 (Fall 2001), pp. 174-84. This ambiguity becomes embarrassingly obvious when the enemies captured in battle are described neither as "prisoners of war"--which presupposes participation in a regular war--nor as mere criminals, but as "detainees."

(28.) Many of these interpretations of Schmitt as an ideological resource for American conservatives can be traced to Dieter Haselbach's contribution to Klaus Hansen and Hans Lietzmann, eds., Carl Schmitt und die Liberalismuskritik (Oplanden: Leske & Budrich, 1988), which first fabricated ideological ties between Schmitt and the American Right. For a devastating critique, see Joseph W. Bendersky, "Carl Schmitt as Occasio," op. cit.

(29.) See George L. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York: Grossett & Dunlap, 1964); and Germans and Jews: The Right, the Left, and the Search for a "Third Force" in Pre-Nazi Germany (New York: Howard Ferting, 1970).

(30.) See Jeffrey Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich (New York: Cambridge University Press, 1984). For an account of the German roots of all this, see Joseph W. Bendersky, "Carl Schmitt and the Conservative Revolution," in Telos 72 (Summer 1987), pp. 27-42.

(31.) See, among others, Scheuerman, Between the Norm and the Exception, op. cit.; Carl Schmitt, op. cit.; John P. McCormick, Carl Schmitt k Critique of Liberalism, op. cit.; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997); and Peter C. Caldwell, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller (Durham: Duke University Press, 1997).

(32.) The level of this "scholarship" is so low, and so full of statements about Schmitt's ideas completely at odds with Schmitt's writings, that it is amazing this material is published at all--especially since so many much more accurate accounts are readily available. For example, see Schwab, The Challenge of the Exception, op. cit.; and Joseph Bendersky, Carl Schmitt: Theorist for the Reich (Princeton, NJ: Princeton University Press, 1883); and Gottfried, Carl Schmitt, op. cit.

(33.) See Mark Neocleous, "Friend or Enemy? Reading Schmitt Politically," in Radical Philosophy: A Journal of Socialist and Feminist Philosophy, 79 (Sept/Oct. 1996): "Schmitt's theoretical work ... led him to join the Nazi Party and ... the theoretical presuppositions of his critique of liberalism underlie an essentially fascist political project," p. 14.

(34.) Cf. in particular, Carl Schmitt, Legalitat und Legitimitat [1932] (Berlin: Duncker und Humblot, 1968).

(35.) Cf. Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Berlin: Duncker und Humblot, 1999).

(36.) See the official denunciation of Schmitt by Alfred Rosenberg, "Die Staatsrechtslehrer Prof. Dr. Carl Schmitt," published as Vertraulich. Mitteilungen zur weltanschaulichen Lage. Der Beaufragte des Fuhrers fur die Uberwachung der gesamten geistigen und weltanschaulichen Erziehung der NSDAP, Berlin (January 8, 1937), No. 1, Vol. 3, that resulted in Schmitt's expulsion from the Nazi Party. Reprinted in Zweite Etappe, Bonn (October 1988). Rosenberg's critique of Schmitt for privileging the state over the party resulted from Rosenberg's anti-Catholicism, according to which the primacy of the state, a secularized transubstantiation of the Church, threatened to marginalize the Nazi Party and to trivialize the race principle.

(37.) Some of them even insist on the right to "interpret" Schmitt's idea in an "integrative" way, whereby the context becomes irrelevant to the presumed political meaning. In so doing, they are able to deal with his ideas as they see fit. See Dyzenhaus, op. cit. For a more extensive critique, see G. L. Ulmen, "`Integrative Jurisprudence' and Other Misdemeanors," in Texas Law Review, Vol. 77, No. 4 (March 1999), pp. 1107-1128. Schmitt often insisted that "A historical troth is tree only once." See Carl Schmitt, "Die geschictliche Struktur des heutigen Welt-Gegensatzes yon Ost und West," in Freundschaftliche Begegnungen: Festschrift fur Ernst Junger zum 60. Geburtstag (Frankfurt a/M: Vittorio Klostermann, 1955), p. 147.

(38.) Here also, the new Schmitt critics uncritically recycle European experiences in a context in which they make absolutely no political sense. Unable to fill its version of "really existing socialism" with any content or goals, already in the 1960s the East German Communist Party had hypostatized anti-fascism to the level of an official state religion.

(39.) McCormick practically criminalizes "neo-conservatism" as a precursor of fascism (ibid., pp. 302ff.); while, historically, American conservatives have been some of the most outspoken defenders of "the rule of law." Unlike European conservatives still tied nostalgically to the ancien regime, American conservatives never had a feudal order to vindicate, and, consequently, operate entirely within the parameters of "bourgeois" legality. On the differences between traditional European conservatives and their American counterparts, see Panajotis Kondylis, Konservatismus: Geschichtlicher Gehalt und Untergang (Stuttgart: Klett-Cotta, 1986).

(40.) Generalizing Otto Kirchheimer's and Franz Neumann's account of the crisis of Weimar and the rise of Nazism, Scheuerman writes about today's "one-sidedness and viciousness of the fight-wing attack on the welfare state." While he realizes that these attacks, by no means as "vicious and one-sided" as he claims, have really been directed against an increasingly insensitive, unaccountable, and inefficient bureaucracy, he proposes this scenario as a model to analyze the decline of the welfare state which, presumably, now lies in ruin--despite the fact that under the Reagan administration, and even more with subsequent ones, welfare spending has grown considerably. See Scheuerman, Between the Norm and the Exception, op. cit., pp. 240ff. According to Richter, however, these explanations cannot totally account for "the sudden rise of the Schmitt reception." See Richter, op. cit., p. 1624. After rambling for several pages about "liberal republicanism," Richter forgets to provide any more satisfactory explanation.

(41.) Unlike American anti-Schmittians, who see the US through Weimar lenses, the Chilean-Canadian anti-Schmittian, Renato Cristi, operating within the horizon of recent Chilean history, sees Schmitt as an authoritarian liberal critic of democracy. See Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Society
(Cardiff: University of Wales Press, 1998). But democracy takes many forms, and while the kind of plebiscitary democracy Schmitt seemed to prefer may be the one best suited as the foundation for what he called "sovereign dictatorship" (and was effectively instrumentalized by Nazi, fascist, and communist regimes), it can be regarded a s a deformation of direct democracy, and thus not much less "democratic" than modern representative democracy, manipulated by lobbies and particular interests within a de facto corporatist framework. Real democracy, i. e., direct democracy, is impossible in a national context, and, at best, practical only in federal contexts based on small units, such as the traditional town meetings, still held throughout rural America.

(42.) McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 12.

(43.) Ibid., p. 305.

(44.) Spectacular cases, such as the Waco and Ruby Ridge incidents, often used as examples of far Right threats, have nothing to do with "fascism." The religious fundamentalists in Waco simply wanted to be able to live according to their reading of the Bible, while at Ruby Ridge it was a matter of not wanting to recognize government authorities. In neither case was there any reference to fascism. If anything, these incidents can be read as resistance against what at the time was perceived to be a usurpation of power by a federal government insensitive to traditional American constitutional rights of free speech and free association. See John Bokina, "Holocaust at Mount Carmel," in Telos 105 (Fall 1995), pp. 133-142.

(45.) McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 313. What McCormick actually describes is not fascism, but traditionalism. Despite its appeals to whatever it could use from the past, fascism was a modernizing ideology ready to destroy or recycle any traditions that stood in its path. Neither Dyzenhaus nor Scheuerman bother to define fascism.

(46.) This is close to Mosse's interpretation of Nazism in his last books on the subject. See Mosse, Germans and Jews, op. cit. Whereas, in his earlier work, Mosse had seen Nazism as a volkisch ideology reacting against modernization and the traditional bourgeois values it spread, later, after he "came out of the closet" and almost as an attempt to reinterpret that same history from a post-bourgeois relativist perspective, he saw it as the opposite: as the extreme extension of these same values now castigated as terminally repressive. See David Gross, "Between Myth and Reality: George L. Mosse's Confrontation with History," in Telos 119 (Spring 20001), pp. 167ff. Neither of Mosse's accounts is very convincing.

(47.) The question of how much support German conservatives provided the Nazi regime remains unresolved. A few years ago, however, efforts to prove that conservative German industrialists were fully behind the Nazi regime--such as David Abraham, The Collapse of the Weimar Republic: Political Economy and Crisis (New York: Holmes & Meier, 1989)--were exposed as fraudulent. For a refutation of Abraham's thesis, see Gerald D. Feldman, "A Collapse of Weimar Scholarship," and "A Response to David Abraham's Reply," in Central European History, Vol. XVII, Nos. 2/3 (June/September 1984), pp. 159-177 and 245-267 respectively. For more credible accounts of the relation of big business and Nazism and fascism, see Henry A. Turner, German Big Business and the Rise of Hitler (New York: Oxford University Press, 1985); and Piero Melograni, Gli industriali e Mussolini (Milan: Longanesi, 1972).

(48.) Dyzenhaus, however, reads Kelsen against himself to make his point, i. e., he interprets Kelsen's theories more concretely than most Kelsen enthusiasts would allow, and actually accepts some of Schmitt's criticisms of Kelsen. Heller is Dyzenhaus' real hero, which is why he avoids any mention of the proto-fascist elements in Heller's thought, while defending Heller's claim that Schmitt's aim was a fascist state. See Dyzenhaus, Legality and Legitimacy, op. cit., pp. 98-101.

(49.) Ibid., pp. 213ff. and Scheuerman, Between the Norm and the Exception, op. cit., pp. 68ff.

(50.) Cf. Scheuerman, Carl Schmitt, op. cit.

(51.) See Christopher Lasch, The True and Only Heaven: Progress and its Critics (New York: W. W. Horton, 1991), pp. 424ff.; and The Revolt of the Elites and the Betrayal of Democracy (New York: W. W. Norton & Co., 1995). See also Piccone, "Postmodern Populism," op. cit., pp. 45-86.

(52.) McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 313.

(53.) In the second edition of his essay on the concept of the political, Schmitt mentions the two types of juridical thinking he had elaborated with reference to Hobbes--normativism and decisionism--and added a third type--institutionalism--which he derived from his understanding of "institutional guarantees" (of the constitutional order) in German jurisprudence, and from Hauriou's theory of institutions. See Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker und Humblot, 1933); the introduction is dated November 1933.

(54.) Carl Schmitt, Uber die drei Arten des rechtswissenschaftlichen Denkens (Hamburg: Hanseatische Verlagsanstalt, 1934); and Staat, Bewegung, Volk: Die Dreilegung der politischen Einheit (Hamburg: Hanseatische Verlagsanstalt, 1933).

(55.) Scheuerman, Carl Schmitt, op. cit., pp. 122-23.

(56.) The Nazis considered Article 48 of the Weimar Constitution and Schmitt's concept of the state, rather than democracy, to be the main obstacles to their rise to power. According to the Mitteilungen, op. cit., for Schmitt the state is a secularized derivative of the Catholic Church. Thus, the hypostatization of the state over people and party clashed with what National Socialism stood for, since it ultimately sought to displace the primacy of race in favor of theological principles as the foundation of Nazism. To the extent that Rosenberg saw the Catholic Church, even more than Jews, as a threat to Nazism, it is understandable why his reading of Schmitt as a Catholic apologist contributed to Schmitt's expulsion from the Party--even more than Waldemar Gurian's exposes of Schmitt as not sufficiently anti-Semitic. See Alfred Rosenberg, The Myth of the Twentieth Century: An Evaluation of the Spiritual-Intellectual Confrontation of Our Age (Newport Beach, CA: Noontide Press, 1993).

(57.) See Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment, tr. by John Cumming (New York: Continuum, 1988).

(58.) See, e. g., Herbert Marcuse, "On the Philosophical Foundations of the Concept of Labor in Economics" (1933), in Telos 16 (Summer 1073), pp. 9-37.

(59.) Theodor W. Adorno, Aesthetic Theory, tr. by Christian Lenhardt (London and Boston: Routledge & Kegan Paul, 1984).

(60.) Edmund Husserl, The Crisis of European Sciences and Transcendental Phenomenology, tr. by David Carr (Evanston, IL: Northwestern University Press, 1970).

(61.) John Dewey, Experience and Nature (Chicago: Open Court, 1971).

(62.) See Henry McDonald, "Wittgenstein, Narrative Theory, and Cultural Studies," in Telos 121 (Fall 2001), pp. 11-54.

(63.) See Georg Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, tr. by Rodney Livingstone (Cambridge, MA: The MIT Press, 1971).

(64.) These concrete orders are already built into Anglo-Saxon common law in

its emphasis on legal precedents, electing rather than appointing judges, privileging the opinions of juries, etc.--all conduits to those living traditions and customs not readily accessible to conceptual formalization.

(65.) Carl Schmitt, "Das Problem der Legalitat" (1950), in Schmitt, Verfassungrechtliche Aufsatze aus den Jahren 1924-1954: Materialen zu einer Verfassungslehre (Berlin: Duncker & Humblot, 1978), pp. 440-451.

(66.) Carl Schmitt, "Uber die Bedeutung des Wortes Nomos," in Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot, 1974), pp.
36-47.

(67.) At the end of WWII, when the social fabric of Germany and Europe had been all but destroyed, he sought such a grounding in the earlier tradition of Roman law. See Carl Schmitt, "The Plight of European Jurisprudence," in Telos 83 (Spring 1990), pp. 39ff.

(68.) According to Gottfried, the emergence of "an antiliberal enemy in the form of fascism ... provided feuding liberals with a welcome source of unity." Since then, there has been a tendency to brand all opponents of liberalism as "fascists" or even Nazis. "Such argumenta ad Hitlerum have characterized the charge of antiliberalism brandished by liberal advocates since the forties." See Paul Edward Gottfried, After Liberalism: Mass Democracy in the Managerial State (Princeton, NJ: Princeton University Press, 1999), pp. 4-5. See also Alain de Benoist, Communisme et nazisme (Paris: Labyrinthe, 1998).

(69.) Carl Schmitt, The Concept of the Political [1932], tr. by George Schwab (Chicago: University of Chicago Press, 1996)

(70.) Guido de Ruggiero distinguished among English, French, German, and Italian liberalism, and saw Germany as a particularly weak case: "The Germans have not lived in the political atmosphere in which their great State organization ought to have been steeped; this organization has remained isolated, in a rarefied atmosphere in comparison with States like England and France which have behind them a great political tradition. From this point of view, the disastrous tendency of the Germans to state every controversial question in terms of military force may be explained as a symptom of their political weakness." See Guido de Ruggiero, The History of European Liberalism, tr. by R. G. Collingwood (Boston: Beacon Press, 1959), p. 271. In a similar vein, in the 1940s Hallowell pointed out that, with the Nazi rise to power, German liberal institutions "collapsed like a house of cards ... No nation ... would calmly submit ... to the wanton destruction of political institutions if these were securely and deeply rooted in the spiritual consciousness of the people. That it was possible ... is eloquent testimony to the degeneracy of German postwar liberalism." Thus: "liberalism was not murdered ... but it committed suicide." Its demise "is to be attributed less to the machinations of Hitler and the National Socialists than to the liberals themselves." See John H. Hallowell, The Decline of Liberalism as an Ideology, with Particular Reference to German Politico-Legal Thought (Berkeley and Los Angeles, University of California Press, 1943), pp. vii.-viii.

(71.) Leo Strauss, "Comments on Carl Schmitt's Der Begriff des Politischen," published as an appendix to Schmitt, The Concept of the Political, op. cit., pp. 82ff.

(72.) Ibid., p. 105

(73.) Cf. James Burnham, The Managerial Revolution: What Is Happening in the World (New York, The John Day Company, 1941). The theme of the New Class, of course, had already been articulated much earlier by Bakunin, Majaisky, etc.

(74.) Gottfried, After Liberalism, op. cit., p. 27.

(75.) Ibid., p. 140. Gottfried concludes that "Schmitt has been right in at least two of his interpretive assumptions. One is that liberalism and democracy belong to two different epochs, one to the nineteenth century and the other to the twentieth. The ... merging of these ideas and movements into `liberal democracy' has brought forth not a true refinement of democratic practice but a garbling of political concepts...."

(76.) No matter how abhorrent, tolerance for "hate speech" and the right not to associate with whomever one wishes has nothing to do with Nazism, fascism, or communism, but are part of the price to be paid for upholding liberal ideals. The ease with which both liberal tenets, along with others, are set aside, indicate the gulf between classical liberalism and the managerial democracy that has displaced it.

(77.) McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 7. Mention of the Enlightenment is telling, since none of the anti-Schmittians buy into the critique of the Enlightenment developed by Horkheimer and Adorno, as well as by Schmitt and most German conservatives. Ibid., p. 90 and 90n. McCormick mentions Dialectic of Enlightenment, although his discussion is lost in a fog of Nietzsche, technology, and myth, and refers readers to Jurgen Habermas' "reworking" of the thesis.

(78.) Cristi, Carl Schmitt and Authoritarian Liberalism, op. cit., p. 6.

(79.) Ibid., p. 5.

(80.) Cristi, Carl Schmitt and Authoritarian Liberalism, op. cit., pp. 171-72. McCormick also criticizes Meier, but his discussion is colored by his effort to make Schmitt an enemy, rather than merely a critic of liberalism. See McCormick, Carl Schmitt's Critique of Liberalism, op. cit., p. 263n. For his part, Dyzenhaus simply misreads the whole Schmitt-Strauss dialogue. He has Strauss attacking Schmitt: "Strauss argues that because Schmitt did not bring his positive valuation of the political to the surface, he also failed to follow through properly on his critique of liberalism. In order to follow through, suggested Strauss, one had to win a `horizon beyond liberalism,' something Schmitt had not achieved." See Dyzenhaus, Legality and Legitimacy, op. cit., p. 85n. But that was Schmitt's point, i. e., that as yet there was no "horizon beyond liberalism," which is why his critique of liberalism was "provisional."

(81.) Dyzenhaus, Legality and Legitimacy, op. cit., p. xi.

(82.) Caldwell, op. cit., pp. 11-12.

(83.) Later Caldwell states that "Schmitt conspired with Kurt von Schleicher and other generals to set up an authoritarian state excluding the Nazis" (p. 87). He never resolves this contradiction. Neither does Dyzenhaus. See Gary Ulmen, "Between the Weimar Republic and the Third Reich: Continuity in Carl Schmitt's Thought," in Telos
119 (Spring 2001), pp. 18-31.

[Telos, Winter (2002) p3]